Muigai & another v Karuri

of the proceedings and judgment on 10th November 2023 in order to decide whether or not to le an appeal but they did not receive them until 2nd May 2024. 3. He avers that being dissatised with the decision of the trial court he intends to le an appeal against it but the time for ling the appeal has lapsed. 4. It is his position that the delay in ling this application is not so inordinate as to be inexcusable and he prays that the application be allowed. 5. The Respondent opposes the Application through the Replying Adavit sworn by him on 7th November 2024. It is his position that this application was led after inordinate delay and the application has been overtaken by events as the suit property has already been sub-divided and transferred to a third party. 6. The Application was canvassed by way of Written Submissions. The Applicant led Written Submissions dated 5th December 2024 through the rm of Gachoka & Company Advocates. The Respondent did not le any submissions. 7. Having perused the Application, the Replying Adavit, and the Applicant’s Written Submissions, the following key issues emerge for determination: i. Whether the court should grant the Applicant leave to le an appeal out of time against the Judgment dated 30th October, 2024. ii. Whether the court should issue an order of stay of execution. Analysis and Determination Whether the court should grant the Applicant leave to le an appeal out of time against the Judgment dated 30th October 2024. 8. Section 79G of the Civil Procedure Act provides that: “ Every appeal from a subordinate court to the High Court shall be led within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satises the court that he had good and sucient cause for not ling the appeal in time.” 9. From the above provision of the law, it is clear that the court has a wide discretion to extend time within which to le an appeal although the discretion must be exercised judiciously. In the case of Nicholas Kiptoo Korir Arap Salat vs IEBC [2014] eKLR the Supreme Court held as follows: “ The underlying principles a court should consider in exercise of such discretion should include: a. Extension of time is not a right to a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court. b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18679/eng@2025-07-21 2

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c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; e. Whether there will be any prejudice suered by the respondents if the extension is granted; f. Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 10. The Applicant intends to appeal against the Judgment of the trial court delivered on 30th October 2024. This court however notes that the decree of the trial court has already been executed. 11. The Applicant has contended that the delay in ling the appeal was occasioned by the fact that despite requesting for a copy of the proceedings and judgment on 10th November 2023, the same were not supplied until 2nd May 2024. 12. In rebuttal, the Respondent has contended that the period of delay is inordinate and that the decree had already been executed. 13. In the case of Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] eKLR , the Court of Appeal stated as follows: “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favourably exercisable.” 14. This application was led on 24th June 2024, almost 8 months after the date of delivery of the Judgment. However, the Applicant’s reason for the delay is valid and backed by a Certicate of Delay indicating that the proceedings and judgment were not availed on time. In the circumstances I am inclined to grant the prayer for leave to appeal out of time. Whether a stay of execution ought to be granted 15. Although the Applicant sought an order of stay of execution it has emerged that the judgment has since been executed as the suit property has been sub-divided and portion thereof sold to a third party. The Applicant’s request that the court cancels the title issued to the third party cannot be done in this application as it involves a person who is not a party to these proceedings. 16. Accordingly, the application succeeds partially and I make the following orders: a. The Applicant is granted leave to le an appeal out of time against the judgment of Hon. Kinyanjui, Chief Magistrate delivered on 30th 2024, in the Chief Magistrate’s Court at Kiambu in Civil Suit No. 127 of 2003. The appeal shall be led within 30 days. b. The costs of the Application shall abide the outcome of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 21ST DAY OF JULY 2025. J M ONYANGO https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18679/eng@2025-07-21 3

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JUDGE In the presence of: Mr. Kinyua for the Respondent Mr. Gachoka for the Applicant Court Assistant - Hinga https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18679/eng@2025-07-21 4

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